[2024] UGHCCD 114

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO. 257 OF 2023 MUGASA GRACE ADYEERI :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS THE COMMISSIONER LAND REGISTRATION :::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

## **RULING**

## **Introduction**

[1] This application was brought by Notice of Motion under Articles 28, 42 and 139 of the Constitution, Section 98 of the CPA, Sections 33 and 36 of the Judicature Act Cap 13, Rules 2, 3, 3A, 5, 6, 7, 7A and 8 of the Judicature (Judicial Review) (Amendment) Rules S. I No.11 of 2019 and Order 52 rules 1, 2 and 3 of the CPR seeking for orders that;

a) An order of Certiorari doth issue quashing the decision of the Respondent to cancel the entry of the name of the late Muhamudu Mayombwe on the certificate of title of land comprised in Bulemezi Block 56 Plot 263 land at Jjanda.

b) An order of Prohibition doth issue restraining the Respondent from taking any action against the interests of the Applicant in land comprised in Bulemezi Block 56 Plot 263 land at Jjanda.

c) Costs of the application be provided for.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by **Mugasa Grace Adyeeri**, the Applicant. Briefly, the grounds are that the Applicant purchased land comprised in Bulemezi Block 56 Plot 263 land at Jjanda (hereinafter referred to as **the suit land**) from the late Muhamudu Mayombwe. Before she could get registered on the certificate of title, a caveat was lodged by Sebyatika Badiru which the Applicant however managed to have it vacated. After vacation of the caveat, Sebyatika Badiru and Nakibirango Edith lodged a complaint with the Respondent seeking for cancellation of the entry of Muhamudu Mayombwe on the certificate of title of the suit land on grounds that the said Muhamudu Mayombwe had fraudulently gotten himself registered on the certificate of title. The Respondent conducted a public hearing and thereafter issued a letter informing the Applicant that a decision had been taken to cancel the entry of the late Muhamudu Mayombwe from the certificate of title. The Applicant avers that the Respondent did not have jurisdiction to entertain the matter concerning fraud which makes the decision illegal; and no reasons were given for the Respondent's decision which made the decision irrational and procedurally improper.

[3] The Respondent opposed the application through an affidavit in reply affirmed by **Babu Hakim**, a Registrar of Titles, who stated that the Respondent received a letter from M/s Wante & Co. Advocates on 20th July 2023 requesting the Respondent to exercise its mandate and cancel the certificate of title of land comprised in Bulemeezi Block 56 Plot 262 land at Jjanda owing to an illegality in the registration of the late Mayombe Muhammud as proprietor on the same without letters of administration. The deponent averred that the Respondent duly exercised its mandate under Section 91 of the Land Act, issued a notice of intention to effect changes in the register, invited the Applicant and five others for a public hearing in respect of the allegations in the complaint; which they attended and were accorded a fair hearing. He further averred that upon conclusion of the public hearing, the Respondent duly served the Applicant with both the findings of the public hearing and the decision of the Respondent to cancel the entry of the late Mayombwe Muhammud off the register book for having been erroneously registered as proprietor of the suit land without valid letters of administration of the estate of the late Nampiima Lazia. The deponent concluded that the Respondent duly exercised its statutory duty and mandate under the law by rectifying the register and the present application has no merit and ought to be dismissed with costs. The deponent also indicated that the Respondent intends to raise a preliminary objection to the application to the effect that the Applicant had not exhausted the available remedies before bringing this application in judicial review.

[4] The Applicant made and filed an affidavit in rejoinder whose contents I have also taken into consideration in the determination of the matter before court.

## **Representation and Hearing**

[5] At the hearing, the Applicant was represented by **Mr. Lumweno Abdu Nasser** from M/s Lumweno & Co. Advocates while the Respondent was represented by **Mr. Ssekitto Moses** and **Mr. Elton Byamukama** from the Office of Titles, Ministry of Lands, Housing & Urban Development. It was agreed that the hearing proceeds by way of written submissions which were duly filed by both counsel and have been taken into consideration in the course of determination of this matter.

## **Issues for Determination by the Court**

- [6] Three issues were agreed upon for determination by the Court, namely; - *a) Whether the application is amenable for judicial review?* - *b) Whether the Respondent's actions were illegal, procedurally improper and/or irrational?* - *c) Whether the Applicant is entitled to the reliefs claimed?*

#### **Resolution by the Court**

# **Issue 1: Whether the application is amenable for judicial review? Submissions by Counsel for the Applicant**

[7] Counsel for the Applicant cited the provisions of Section 91(10) of the Land Act to the effect that where the Commissioner Land Registration cancels an entry on a certificate of title, an aggrieved party shall appeal the decision to the land tribunal within 60 days. Counsel submitted that the land tribunals are no longer operational and there was no internal remedy available to the Applicant. Counsel cited the case of *Leads Insurance Ltd v Insurance Regulatory Authority & Another, CACA No. 237 of 2015* for the submission that locking out the applicant from court in circumstances where she cannot access the land tribunal would amount to denial of her right to be heard under Article 28 of the Constitution of Uganda.

## **Submissions by Counsel for the Respondent**

[8] Counsel for the Respondent cited the provisions of Rule 7A of the Judicature (Judicial Review) (Amendment) Rules 2019 to the effect that in considering an application for judicial review, the court shall satisfy itself that the application is amenable for judicial review, that the aggrieved person has exhausted the existing remedies available within the public body or under the law, among others. Counsel submitted that the Applicant herein had not exhausted the existing remedies available under the law in section 91 of the Land Act which obliged her to appeal the decision of the Respondent to the High Court. Counsel stated that the remedy available to the Applicant was to appeal the decision to the High Court and not to proceed by way of judicial review.

#### **Determination by the Court**

[9] Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019 provides that;

*"The court shall, in considering an application for judicial review, satisfy itself of the following –*

- *(a) That the application is amenable for judicial review;* - *(b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law; and* - *(c) That the matter involves an administrative public body or official."*

[10] It follows, therefore, that for a matter to be amenable for judicial review, it must involve a public body in a public law matter. The court must, therefore, be satisfied; first, that the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. See: Ssekaana Musa, Public Law in East Africa, P.37 (2009) Law Africa Publishing, Nairobi. In the present case, there is no contest as to whether the Respondent is a public body that is subject to judicial review or that the matter in issue involves public law matters. What is contested is whether the Applicant exhausted the existing remedies available within the public body or under the law. It was submitted by Counsel for the Respondent that there was an alternative remedy under Section 91 of the Land Act of appealing to the High Court within 60 days which the Applicant did not exhaust.

[11] Section 91 (10) of the Land Act Cap 227 provides that any *"… party aggrieved by a decision or action of the Commissioner under this section may appeal to the District Land Tribunal within sixty days after the decision was communicated to that party".* In *Leads Insurance Limited v Insurance Regulatory Authority & Another CACA No. 237 of 2015,* the Court held that if the applicant is to satisfy the Court to entertain the application for judicial review in presence of an alternative remedy, the applicant has to show some exceptional circumstances or some other ground why it is inappropriate for the matter to be dealt with by the alternative forum. In that matter, the applicant successfully relied on the ground that the relevant tribunal was not yet in place at the time of institution of the judicial review application.

[12] On the matter before me, it is stated by the Applicant that the land tribunals are no longer in place and there is no way she would lodge an appeal as provided for under the said law. On the other hand, it is stated by the Respondent that the Applicant ought to have filed an appeal before the High Court. Counsel for the Respondent, however, did not point out to the Court a clear legal provision directing a party to file, in the High Court, an appeal that was meant to be filed before the land tribunal. It ought to be noted that, pursuant to Practice Direction No. 1 of 2006, and following the expiry of contracts of Chairpersons and Members of the District Land Tribunals, the jurisdiction that was being exercised by the District Land Tribunals was conferred upon Magistrates Courts presided over by Magistrates of the rank of Magistrate Grade 1 and above. By necessary implication, the appeal that was supposed to be lodged with the District Land Tribunal in accordance with Section 91 (10) of the Land Act would have had to be lodged with the Magistrates' Court.

[13] Given that the Applicant herein seeks to challenge the decision making process on grounds of illegality, irrationality and procedural impropriety, and not on merits of the decision, it is obvious that the Applicant could not lodge an appeal to the magistrates' courts. Similarly, in absence of a clear legal provision, it would be a gamble on the part of the Applicant to lodge an appeal in the High Court given the clear legal position that an appeal is a creature of statute. Indeed, under Article 139(1) of the Constitution of Uganda, the High Court has *"unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law"*. It follows that in absence of a law conferring appellate jurisdiction upon the High Court in these circumstances, a party cannot assume such jurisdiction upon the Court. The court can only exercise inherent jurisdiction in a matter that is properly before it.

[14] My attention was drawn to the decision in *Sarah Nakku & Others v The Commissioner Land Registration & Another, HC Civil Appeal No. 064 of 2010* in which the trial Judge exercised jurisdiction to entertain the appeal despite an objection to the jurisdiction of the court by the respondents. I have taken note of the fact that in the said case, the trial Judge was persuaded upon the facts and circumstances of the particular case and allowed to entertain the appeal. The decision, however, cannot be used as a yardstick to reach a determination that appeals referred to under Section 91 (10) of the Land Act may, as a rule, be filed in the High Court.

[15] As such, in view of such questions as to where a party could have properly filed an appeal, it cannot be said that the Applicant had an existing alternative remedy that was available and effective. It is clear to me that the above questions make the alleged alternative remedy less convenient or effective. Given the nature of challenge raised by the Applicant, she properly brought this application by way of judicial review. The application is therefore amenable for judicial review.

# **Issue 2: Whether the Respondent's actions were illegal, procedurally improper and/or irrational?**

[16] Let me begin by making an exposition of the nature of judicial review and the role of the court in exercise of its supervisory power over public and administrative bodies. Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasijudicial functions or who are charged with the performance of public acts and duties. See: *Rule 3 of the Judicature (Judicial Review) (Amendment) Rules 2019*.

[17] Judicial review is thus concerned not with the decision but the decision making process. Essentially, judicial review involves an assessment of the manner in which a decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. The duty of the court therefore is to examine the circumstances under which the impugned decision or act was done so as to determine whether it was fair, rational and/or arrived at in accordance with the rules of natural justice. See: *Attorney General v Yustus Tinkasimmire & Others, CACA No. 208 of 2013* and *Kuluo Joseph Andrew & Others v Attorney General & Others, HCMC No. 106 of 2010*.

[18] It follows, therefore, that the court may provide specific remedies under judicial review where it is satisfied that the named authority has acted unlawfully. A public authority will be found to have acted unlawfully if it has made a decision or done something: without the legal power to do so (unlawful on the grounds of illegality); or so unreasonable that no reasonable decisionmaker could have come to the same decision or done the same thing (unlawful on the grounds of unreasonableness or irrationality); or without observing the rules of natural justice (unlawful on grounds of procedural impropriety or unfairness). See: *ACP Bakaleke Siraji v Attorney General, HCMC No. 212 of 2018*.

[19] On the case before me, the decision challenged by the Applicant is the cancellation by the Respondent of the entry of the name of the late Muhamudu Mayombwe on the certificate of title for land comprised in Bulemeezi Block 56 Plot 263 Land at Jjanda (the suit land). It is alleged by the Applicant that the proceedings and decision of the Respondent in that regard were tainted with illegality, irrationality and procedural impropriety. I will consider each of the grounds independently.

## **The Ground of Illegality**

## **Submissions by Counsel for the Applicant**

[20] Counsel for the Applicant submitted that the powers of the Respondent to cancel an entry or endorsement on a certificate of title are set out under section 91(1) of the Land Act and do not include fraud. Counsel cited the case of *Hilda Wilson Namusoke v Owalla's Home Investment Ltd & Anor SCCA No. 15 of 2017* for the position that Section 91 of the Land Act intentionally exempted the Commissioner Land Registration from dealing with issues of fraud as the same had to be strictly pleaded and proved before a court of law. Counsel submitted that in this case, the complaint to the Respondent was premised on fraud over which the Respondent lacked the legal mandate to deal with. Counsel concluded that the decision and action taken by the Respondent were therefore ultra vires the powers of the Respondent and therefore illegal.

#### **Submissions by Counsel for the Respondent**

[21] Counsel for the Respondent cited the provisions of Section 91(1) of the Land Act that gives the Registrar of Titles powers to take such steps as are necessary to give effect to the law by endorsement or alteration or cancelation of the title or issuance of fresh certificates of title or otherwise and submitted that the Respondent acted within the confines of the law in the process that led to the cancellation of the entry on certificate of title in issue. Counsel submitted that the decision and action of the Respondent were not tainted with any illegality and the application has no merit.

#### **Determination by the Court**

[22] Illegality has been described as the instance when the decision making authority commits an error in law in the process of making a decision or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. Lord Diplock in the case of *Council of Civil Service Unions v Minister for Civil Service (1985) AC 375,* made the following statement;

*"By illegality as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulated his decision making power and must give effect to it. Whether he has or not is, par excellence, a* *justifiable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercised''*.

[23] A public authority or officer will be found to have acted unlawfully if they have made a decision or done something without the legal power to do so. Decisions made without legal power are said to be ultra vires; which is expressed through two requirements: One is that a public authority/officer may not act beyond their statutory power; and the second covers abuse of power and defects in its exercise. See: *Dr. Lam-Lagoro James v Muni University, HCMC No. 007 of 2016*.

[24] On the case before me, it is alleged by the Applicant that the complaint to the Respondent leading to the impugned decision was based on allegations of fraud over which the Respondent did not have legal mandate to entertain and act the way they did. I have looked at the copy of the complaint that was lodged with the Respondent dated 20th July 2023 (Annexure "A" to the affidavit in reply). The complaint states in paragraph 4 thereof that;

*"Mayombwe Muhamudu, before obtaining Letters of Administration, and without the consent of his sister Nansubuga Rashida, fraudulently took the certificate of title from the person who had custody of it and transferred the same into his name as sole proprietor …"*

[25] In paragraph 5 of the complaint, it is further stated thus;

*"We have confirmed from the records at the Land Registry that Mayombwe Muhamudu was registered on the land on 11th August 2013, twenty-three years after the deceased's death. There is no indication that his registration was procured as an administrator of the deceased's estate, which makes it illegal and void ab initio."*

[26] It is clear from the above paragraphs in the complaint that the fraud referred to in paragraph 4 was in reference to the act of taking the certificate of title *"from the person who had custody of it and transferred the same into his name as sole proprietor"*. This is not in reference to activities executed in the land office. Rather, it is in reference to activities between the said Mayombwe Muhamudu and the custodian of the certificate of title that preceded what took place in the land office. That part of the transaction was not part of the matter that was handled by the Respondent in the land office and it would be farfetched, and indeed out of context, to argue that it constituted one of the considerations that the Respondent had to dwell on.

[27] Clearly, what the Respondent was concerned with were the activities that had taken place in the land office. Without Letters of Administration, the said Mayombwe Muhamudu had effected transfer of land from a deceased person's name into his name. Whichever way it was done, this constituted an error on the part of the Respondent and act of illegality. There was nothing either in the complaint or by way of material placed before the Respondent showing that the transfer was occasioned by fraud. What was before the Respondent was that the registration had been done in contravention of the law. The complaint thus fell within the domain of the Respondent and the office had the mandate to cure the same. To my finding, the Respondent exercised power that is vested in them under the law and no ultra vires exercise of power has been established by the Applicant. This ground of the application is therefore not made out and it fails.

# **The Ground of Procedural Impropriety**

### **Submissions by Counsel for the Applicant**

[28] Counsel cited the provisions of Section 91(5)(d) of the Land Act to the effect that the Registrar shall give reasons for any decision that he or she may take and submitted that the Respondent in the letter issued to the Applicant did not give any reasons to the Applicant as to why a decision was taken to cancel the entry of the late Muhamudu Mayombwe from the certificate of title. Counsel argued that the Respondent's actions were contrary to the procedure stipulated under the law and is thus an act of procedural impropriety.

### **Submissions by Counsel for the Respondent**

[29] In response, it was submitted that the Respondent properly followed the procedure as set out under section 91 of the Land Act. Counsel submitted that having established that the instrument that created the registration of the late Mayombwe as administrator of the estate of the late Nampiima Lazia was illegal and erroneous, the Respondent had to cancel the same as it defeated the registered interest of the lawful administrators of the estate. Counsel stated that once the said instrument collapsed, the entries and titles also collapsed.

### **Determination by the Court**

[30] Procedural impropriety has been defined to mean "the failure to observe basic rules of natural justice or failure to act with procedural fairness toward the person who will be affected by the decision." See: *Council of Civil Service Unions & Others v Minister for the Civil Service [1985] AC 374*. Under the law, procedural impropriety encompasses four basic concepts; namely (i) the need to comply with the adopted (and usually statutory) rules for the decision making process; (ii) the requirement of fair hearing; (iii) the requirement that the decision is made without an appearance of bias; (iv) the requirement to comply with any procedural legitimate expectations created by the decision maker. See: *Dr. Lam – Lagoro James v Muni University, HCMC No. 0007 of 2016*.

[31] It was claimed by the Applicant that the decision by the Respondent did not comply with the rules of natural justice since no reasons thereof were communicated to the Applicant. The duty of the Respondent of ensuring adherence to the rules of natural justice is clearly encapsulated in the provisions under Section 91 of the Land Act as amended in 2004. Section 91(8)(d) of the Land Act Cap 227 provides that *"In the exercise of any powers under this section, the registrar shall … give reasons for any decision that he or she may make"*. The Land (Amendment) Act 2004 introduced section (2b) to section 91 of the Act which reiterated the above provision with greater force. It provides as follows;

*"(2b) Upon making a finding on the matter, the Commissioner shall communicate his or her decision in writing to the parties, giving the reasons for the decision made, and may call for the duplicate certificate of title or instrument for cancellation, for correction or delivery to the proper party."*

[32] In the instant case, it is shown in paragraph 10 of the affidavit in reply filed by the Respondent that;

*"…upon conclusion of the said public hearings, the office of the Respondent duly served the Applicant with both the findings … and the decision of the Respondent to cancel the entry of the late Mayombwe Muhammad off the register book in respect of the certificate of title of the suit land for being registered erroneously as proprietor of the same land without valid letters of administration of the estate of the late Nampiima Lazia. A copy of the said Notice of Cancellation is attached marked Annexure "D"."*

[33] According to paragraph 1 of the said notice of cancellation, the reason for the cancellation is that the said Muhamudu Mayombwe illegally got registered on the said land. This was actually the reason of the cancellation. In the affidavit in rejoinder filed by the Applicant, she does not deny having been served with the said notice of cancellation (Annexure D). She only denies being served with the findings by the Respondent and the reasons for the decision. I note that while the law requires furnishing of the reason for the decision, it does not prescribe the form and detail of the communication. Since it is alleged, and not contested by the Applicant, that the Applicant attended the public hearings, I am able to make an inference that she had the details of the proceedings and findings. If not, she was at liberty to demand for the same from the Respondent. But as far as complying with the provision of the law is concerned, the Respondent duly communicated the reason for the decision to cancel the entry of Mayombwe Muhamudu from the certificate of title to the suit land. As such, no breach of the rules of natural justice has been established by the Applicant and no instance of procedural impropriety has been proved. This ground of the application is also not made out and it fails.

### **The ground of Irrationality**

#### **Submissions**

[34] Counsel for the Applicant submitted that the Respondent's decision to cancel the entry of the late Mayombwe Muhamudu without stating any reason or reasons whatsoever for taking the decision does not make sound common sense and is thus irrational. On their part, Counsel for the Respondent submitted that the Respondent duly communicated the reason for the cancellation of the entry of the late Mayombe Muhammad on the certificate of title through a notice of cancellation served upon the Applicant. Counsel submitted that no irrationality in the conduct of the Respondent has been established by the Applicant.

### **Determination by the Court**

[35] In judicial review parlance, irrationality refers to arriving at a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. See: *Council for Civil Service Unions & Others (supra)*. In *Dr. Lam – Lagoro James (supra),* it was held that in judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

[36] It has been shown herein above that the reason for cancellation of the name of the late Muhamudu Mayombwe was duly communicated to the Applicant; which evidence the Court has believed. Since this was the basis of the Applicant's claim on the ground of irrationality, the inevitable conclusion is that no instance of irrationality or unreasonableness has been established by the Applicant against the Respondent. The application also fails on this ground. In all, issue 2 is answered in the negative.

## **Issue 3: Whether the Applicant is entitled to the reliefs claimed?**

[37] In view of the findings under Issue 2 above, the Applicant has failed to satisfy the Court on any of the grounds for judicial review of the Respondent's decision as raised in the application. As such, the application has wholly failed and is dismissed with costs to the Respondent.

It is so ordered.

*Dated, signed and delivered by email this 19th day of July, 2024.*

**Boniface Wamala JUDGE**